DeCSS-Prozess Update

DeCSS-Prozess Update

(Abriß:
DeCSS-Prozess Update
Declan McCullagh über die Fährnisse bei der Verteidigung
der DeCSS-Hacker, einer gewissen Mischung aus genialem
Nerdism, Unkonzentriertheit & Unbekümmertheit. Selbiges
kann auch auf der internen List der Main Suspects
beobachtet werden. Während die Mediencopyrightlobby mit
schweren Geschützen auffährt diskutiert man munter über
Details, wie ProtestFlyer aussehen sollte oder verspinnt sich
in höhere Programmiererei.
Wie man herauslesen kann, sind die meisten noch keine
zwanzig Jahre alt.

Es gibt dort ein Open law Projectr und Fragen, die Beatwortet werden sollen, wenn sich jemand mit USA online Recht auskennt und Zeit hat ...

Hier die ganze Story:
From Wired News, available online at:
http://www.wired.com/news/print/0,1294,34808,00.html

In the trench warfare between the motion picture industry and the
Linux and hacker communities, it's pretty obvious who can afford to
spend the most on lawyers.
The eight Motion Picture Association of America member companies,
which have been battling the DVD-descrambling utility called DeCSS,
have hired one of the largest, oldest, and meanest law firms in New
York city, Proskauer Rose. They've got so many lawyers to spare that
they flew some to the Bay Area just to sit in on a hearing in a
separate case. See also:
Hear the News? You can listen to this story.
DVD Wars: Defense Rallies
DVD Saved the Analog Star
DVD Case: It's a Linux Thing
Everybody's got issues in Politics
By contrast, it's been two months, but the Electronic Frontier
Foundation still hasn't found a law firm in New York that will work
for cheap and doesn't have any conflict of interest problems.
In the related Connecticut case, the lawyer representing the
hacker-defendant also has a profitable practice in equine -- that is,
horse -- law.
But the beleaguered defense teams, which have been defeated in two of
two cases so far, have a not-so-secret weapon: The Internet and open
collaboration.
In fact, the concept is precisely the opposite of secret. The idea is
simple: A legal argument can be developed in an open forum that anyone
can join and participate in, and eventually the best ideas will bubble
up to the top.
The discussion group is called, appropriately enough, "dvd-discuss,"
and it's part of the so-called open-law project organized by Harvard
University's Berkman Center for Internet and Society.
"It's trying to take the open source idea that 100 people looking at
an idea is better than 10, and maybe a group of people looking at
legal arguments is better than a few," said Wendy Seltzer, a Berkman
Center fellow and an associate at the New York law firm of Kramer
Levin Naftalis & Frankel.
"It might suggest other things, different things that we didn't
consider," said Allonn Levy, an attorney at Huber and Samuelson in San
Jose and part of the EFF defense team.
It's a compelling concept, and Seltzer said that previous open-law
projects -- including one mounting a legal challenge to a U.S. law
extending copyright terms -- have had some success.
But in the DVD cases, the results are mixed -- at best.
Here's an example: EFF attorney Robin Gross last Friday sent out a
public call for help to the dvd-discuss list
Her message asked if members could self-organize to answer 15 specific
questions -- queries like what cases cover fair use analysis and click
wrap licenses, and whether it's possible to skip commercials on a DVD.

"Can someone please volunteer to take responsibility for researching
the following issues and presenting a memo for each? I will leave it
to you all to self-organize," Gross wrote. "If we could have the first
draft of each memo one week from today, it would really be a
tremendous help to us."
Guess what? It didn't happen.
Nobody stepped in and took responsibility for coordinating the effort.
The sole list member who replied wanted terms defined before he could
answer a question about what platforms had DVD players. "How are you
defining an 'operating system?'" he wrote.
It's not a surprise that another frustrated list member wrote at
around the same time, "Enough with the proDeCSS rants."
And it wasn't just anti-MPAA rhetoric that obscured useful
discussions. Some 50 messages over just two days last week revolved
around "Turing Completeness" -- an obscure mathematical concept that
involves what one theoretical computer can simulate.
One participant tried to rescue the discussion: "I'm just trying to
say I think we've gone down a rat-hole that doesn't lead anywhere.
It's interesting computer science, but I don't think it's germane."
It didn't work, at least not at first. One of the math wonks replied:
"Point taken. It is germane however. Interoperability requires
programs. Program needs to be defined."
Seltzer, the Harvard Berkman Center fellow who's the list coordinator,
said "it's too early to say" whether the hoped-for collaborative
process was working or not.
"The fact that I didn't get a lot of those requests [to help
EFF] is an indication that there are a lot of people interested in
vague discussions who are not going to sit down with books and do
research," Seltzer said.
Still, it's probably too early to evaluate the success of the open-law
efforts. For one thing, the list is just three weeks old, and it might
take considerably longer for people to find it and for discussions to
stabilize. And the participants have already put together an
undeniably useful list of frequently asked questions.
"It takes strong management to pull the pieces together," Seltzer
said. "We're getting some helpful elaborations."

URL
http ://eon.law.harvard.edu/archive/dvd-discuss/msg00995.html

Hier die Fragen:
·       To: "·  dvd-discuss@eon.law.harvard.edu" <·     dvd-discuss@eon.law.harvard.edu>
·       Subject: [dvd-discuss] [Fwd: research questions - request for memos]
·       From: Robin Gross <·    robin@eff.org>
·       Date: Fri, 03 Mar 2000 02:18:45 -0800
·       CC: Wendy Seltzer <·    wendy@seltzer.com>
·       Organization: Electronic Frontier Foundation
·       Reply-To: ·     dvd-discuss@eon.law.harvard.edu
·       Sender: ·       owner-dvd-discuss@eon.law.harvard.edu

I forgot to add a couple of the Tech Issues in the last email. Please
append the following issues to list to of issues to be explored.
Thanks.

5. Top five myths about DeCSS. What are the top five greatest
misunderstandings about the DeCSS technology and why are they wrong?

6. I'm not sure this is even possible: Can we determine the number of
copies of DeCSS found on Web Sites around the world on the following
dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29? Please document
all findings. If you can't find the historical figures, can we find
current figures?

Thank you!
Robin

Robin Gross wrote:
>
> Hello folks:
>
> I have some specific questions that we need looked into and was hoping
> this list could take them on. Can someone please volunteer to take
> responsibility for researching the following issues and presenting a
> memo for each? I will leave it to you all to self-organize. My
> suggestion is to post the draft so the rest of the list can critique it,
> and then rework, based on the comments and post the final version. If
> we could have the first draft of each memo one week from today, it would
> really be a tremendous help to us. I'll be traveling in NY this
> weekend, but available via email. A lot of these issues have been
> discussed thoroughly on this list with many insightful comments, but now
> we need definitive and supported conclusions.
>
> Thank you all for your energy and support on this project. It is
> greatly appreciated!
>
> All the best,
> Robin
>
> ---------------------------------------
>
> LEGAL ISSUES:
>
> 1. We need a memo on the issue of DVD as a computer program or data
> file. What was the legislative intent behind the DMCA exemptions for
> DVDs? Do they apply or was this only intended for "software"?
>
> 2. DVD region coding and possible legal ramifications. Does this
> scheme violate antitrust laws as a cartel organizing a restraint in
> trade? Does this scheme violate a European Directive regarding unfair
> trade?
>
> 3. Comprehensive Fair Use Analysis. We need a memo outlining the most
> important fair use cases (approx. 35) and discussing how they impact
> this case.
>
> 4. Comprehensive Copyright/First Amendment Analysis. We need a memo
> outlining the most relevant copyright cases that have involved First
> Amendment defenses and discussing how they impact this case.
>
> 5. Reverse Engineering Analysis: We need a memo outlining the legal
> cases dealing with reverse engineering and how they apply to this case.
>
> 6. Click wrap licenses. a) What is the case law supporting the
> requirement for a manifesting of assent to contract? b) Does case law
> support the creation of binding agreements through purchase only? c)
> what is the impact of "hacking" around a click-wrap on the requirement
> for assent to contract?
>
> 7. What is the burden of proof standard regarding the weight of the
> evidence needed to prove an initial misappropriation in a trade secret
> case? What is the burden of proof (weight) needed to prove
> misappropriation by a republisher?
>
> 8. What are case law examples involving the loss of trade secret status
> through inadvertence?
>
> 9. What cases have discussed the limitations imposed upon Congress
> regarding Copyright? How does the Constitution constrain what Congress
> can do in fixing the rules for copyright?
>
> TECH ISSUES:
>
> 1. Region Coding. How does region coding prevent playback? What are
> the different ways to bypass this technological measure and how easy are
> they to accomplish? Are there DVDs that are coded to play in all
> regions?
>
> 2. True or False: It is impossible to fast-forward past commercials or
> FBI warnings on DVDs?
>
> 3. What other operating systems are left unsupported by DVDs?
>
> 4. What are other concrete examples are there of occasions in which
> reverse engineering has been critical to achieving a technological break
> through in an industry? Are there examples of other attempts to prevent
> such activity and what was the result?
>
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> Robin D. Gross - Cyberspace Attorney @ Law
> Electronic Frontier Foundation
> 1550 Bryant Street, Suite 725, San Francisco, CA 94103
> t: 415.436.9333 (x107) f: 415.436.9993
> e: robin@eff.org        w: http://www.eff.org
> RDG direct line: 415.863.5459   direct fax: 415.863.7154
> EFF's Campaign for Audiovisual Free Expression:
> http://www.eff.org/cafe
> http://www.eff.org/pub/Intellectual_property/DVDCCA_case
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

--
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Robin D. Gross - Cyberspace Attorney @ Law
Electronic Frontier Foundation
1550 Bryant Street, Suite 725, San Francisco, CA 94103
t: 415.436.9333 (x107) f: 415.436.9993
e: robin@eff.org        w: http://www.eff.org
RDG direct line: 415.863.5459   direct fax: 415.863.7154
EFF's Campaign for Audiovisual Free Expression:
http://www.eff.org/cafe
http://www.eff.org/pub/Intellectual_property/DVDCCA_case
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(p-tv)